Judicial Philosophy is bunk
and the Right knows it
Louis Brandeis was confirmed to the U.S. Supreme Court in 1916 on a 47-22 vote. Exactly one Democrat voted against him1.
The Republican opposition to him can be summed up as blatant anti-semiticism, but the real reason was not simply that that Brandeis was Jewish but that Brandeis was a brilliant lawyer and political progressive who had beaten his conservative Christan brethren in the Bar so so often it was embarassing. Just ask William Howard Taft — the future President and Chief Justice of the Supreme Court was beaten by Brandeis in court battles.
Until the Brandeis nomination, Supreme Court Justices were nominated and confirmed by the U.S. Senate without the need for public hearings — 127 years. Suddenly in 1916, Judiciary Committee hearings and examination of a nominee’s qualifications, temperment, and philosophy became a political necessity.
Judge Kentaji Brown Jackson is scheduled for a floor vote to become an Associate Justice of the Supreme Court. Once confirmed, she will be the Court’s third African-American Justice and just the Sixth female Justice to serve on the high court.
Her confirmation became a sure thing after Senators Mitt Romney (R-UT) and Lisa Murkowski (R-AK) announced they would support Judge Jackson’ s nomination. Senator Collins (R-ME) had previously announced her support of Judge Jackson.
A fair reading of the statements of Senators opposing Jackson are either “soft on crime” or her judicial philosophy and a combination of the two2.
Given that there is nothing in Judge Jackson’ sentencings that is outside the judicial mainstream, it’s a stretch to call her soft on crime. The sentencings under attack were child porn possession cases and that is a mostly white male crime. It would certainly have been interesting if she had taken to harsh sentencings in such cases — Washington D.C., where Jackson served as a U.S. District Court Judge, is 70% African-American and yet the demographics of whom she was sentencing was still very, very white. We’d have likely beeen hearing arguments that she had a vendetta against white defendants then.
Judicial philosophy? Her philosophy is not much different that the Justice she will be replacing - Stephen Breyer. His “philosophy” was well known in 1994 when nominated by President Clinton (he had been a Judge on the First Circuit Court of Appeal since 1980). It was unremarkable enough to earn the vote of Senator Mitch McConnell (R-KY).
There have been exactly two cases where judicial philosophy was really at issue — the 1987 Bork nomination and the 2020 Barrett confirmation. Otherwise, judical philosophy is code for “I cannot think of an actual reason beyond partisan politics” to oppose. Given Judge Jackson’s low reversal rate as a District Court Judge3, judicial philosophy criticisms makes even less sense. Jackson has had her decisions reversed 2% or 11% of the time depending on how the metric is measured. That’s either a solid A or an A- on being right.
By the end of this week, Judge Kentaji Brown Jackson will be confirmed with 3 GOP votes in support. The Left should not be enthralled by the bipartisan vote — Neil Gorsuch and Brett Kavnaigh were confirmed, thanks to Senator Joe Manchin (D-WV), with bi-partisan votes.
https://timesmachine.nytimes.com/timesmachine/1916/06/02/100208094.html?pageNumber=1
https://www.washingtonpost.com/politics/interactive/2022/ketanji-brown-jackson-confirmation-vote/?itid=hp-top-table-main
https://news.bloomberglaw.com/us-law-week/reversal-rates-imperfect-tool-for-judging-supreme-court-nominees